text:
    GOODWIN VS LYON.

      As to the specific execution, in Chancery, of parol contracts, for the sale of lands.

      As to compensation, in such cases, for improvements.

    1. Chancer/ will not lend its aid to enforce the specific performance of parol contracts for the sale of lands, where the proof of the terms of the agreement is uncertain and contradictory ; or where the agreement proved, does not correspond with the allegations of the bill.
    2. Time may become an essential ingredient in the performance of a contract, for the sale of lands, so far as its specific enforcement in a Court of Equity is concerned'.
    '3. Thusj where it appears that a party seeking to compel a specific performance of a parol agreement, for the sale of lands, has failed to execute his part of the contract, at the day, without excuse on his own part, or the assent of the other party, to the delay, Chancery will not relieve him;
    4. Thus, where A, in December, 1833, made a parol agreement wilh B, for the purchase of lands, which B was to purchase of an Indian reservee, under which contract B received a horse valued at one hundred dollars, and was also to receive one hundred dollars in December, cighteeen hundred and thirty-four, and the like sum in December 1835, and in December 1836 ; and after B did purchase, A entered upon the land and made improvements, but made no offer of payment until January or February 1835,(except anoffer of thenotes ofa third person due several years after the agreement was made,) and the contract as disclosed by the bill was uncertain and contradictory, and altogether disproved by the answer and proof ; — á bill filed in Chancery for the object of enforcing a specific performance, was dismissed with costs.' — but without prejudice to an action at law, or suit in equity to recover back money or property delivered upon the faith of the agreement.
    5. Where a parol contract for the sale and purchase bf lands id made, upon the faith of which the vendee inker; possession;, and makes valuable and permanent improvements — though the specific execution of the agreement may not be enforced in equity, either because the agreement is imperfect, or its precise terms cannot appear, — Chancery will yet decree a pecuniary compensation, equivalent to the improvements made by the vendee.
    6.. But, where one applies for the protection of Equity in enforcing a specific execution of a parol agreement for the sale of lands, and the answer and proofs disprove the case stated ins the bill-, and it appears that the party seeking the interposition of Chancery, has failed to comply with the terms of the contract, but is in default, and that the contract cannot be enforced, — Chancery will not decree compensation for improvements.
    In error to a decree in Chancery, of the Circuit Court of Talladega.
    This was a bill in Chancery, filed in i he Circuit Court of Talladega, by Joshua Lyon; and its object was to enforce the specific execution of a parol agreement for the sale of lands.
    The bill stated that on the twenty-sixth day of December, A. D. eighteen hundred and thirty-three, he contracted by parol with Thomas Goodwin, the defendant, for the purchase of the south half of section fifteen, in township .seventeen, of range six. — * That by the terms of the said cdntract, the- said Goodwin was to receive of the complainant, a horse estimated at the price of one hundred dollars, and the additional sum of four hundred dollars, payable as follows: — one hundred dollars, payable on the twenty-fifth day of December, eighteen hundred and thirty-four; one hundred and fifty dollars, on the twenty-fifth day of December, eighteen hundred and thir$y-íhre; and one handred and fifty dollars, on the twenty-Ilfth day of December, eighteen hundred and thirty-ciz:: that accordingly, the said Goodwin was put ia possession of the horse. The bill stated further, that the lands thus agreed to be purchased, were the reset ration of an Indian, and that Goodwin had contracted with him for the purchase thereof, so soon as the formality of his location, under the Indian treaty had been completed. That it was however, agreed, that if the Indian was not located upon this particular tract of land, Goodwin was to discharge complainant from the payment of the aforesaid sum of four hundred dollars — retaining the horse for his trouble. That in January, eighteen hundred and thirty-four, complainant took possession of the said lands, and proceeded to make extensive improvements thereon. That in the month of January, eighteen hundred and thirty-four, complainant turned over to defendant, two hundred dollars in the notes of one Steed, which were to fall due about the time complainant’s payments were to be made; which notes were received by defendant in part consideration of the aforesaid sale of the said lands. The bill then proceeded to allege, that the Indian had been regularly located upon the said lands ; that he sold the same to Goodwin, and that the contract to the latter had been regularly certified and approved, as required under the treaty. That the lands having risen greatly in value, the said defendant refused to comply with his agreement, and make a title to complainant in pursuance thereof. That on the twenty-fifth December, eighteen hundred and thirty-four, complainant had made a tender to complainant’s wife, of the remaining two hundred dollars, and afterwards, in eighteen hundrfed and thirty-five, a like tenderlo defendant of' the same amount, demanding the title aforesaid. — • And the bill therefore prayed an enforcement of the. contract, &c.
    The answer of the defendant averred, that he had undertaken to sell to the complainant for the horse, mentioned in the bill, an. improvement, upon the lands .specified: that it was understood, when possession pass.ed to the complainant, that nothing more than, the right of occupancy was conveyed. He denied, that any such contract as stated in complainant’s bill, vyas made; but stated that he agreed to let complainant have the land, if complainant would advance,him two hundred dollars, to enable him to complete, a contemplated purchase with the Indian, before mentioned; but he denied that any payment, had been made to him. That two notes, drawn by Steed, were delivered to defendant by complainant;; but they were, only intended to secure, collaterally, a distinct debt, due to defendant by complainant.— Defendant further, denied a tender — stated’that if-madp he would have refused it, as the complainant had never furnished the amount of money stipulated, and defendant had purchased the lands, and paid for them, with his own funds, and for his own purposes. He therefore, prayed to be discharged, .&c.
    The proof taken in the case established the facts,-, of an offer to pay, on the part of the complainant, two hundred dollars, in eighteen hundred and thirty-five, if defendant would make the title — that the horse was delivered, and that defendant had procur-eel the title from the Indian. That the land had risen considerably in value. That defendant frequently acknowledged having made the contract for a sale of the land — two hundred dollars to be paid when the land was located, and two hundred dollars, in subsequent instalments, — and, that he had received the horse, as the first payment, subject to the condition, that if he failed in procuring the Indian right,, the horse was to-be retained, for his trouble.
    The depositions taken by the defendant, also es:. tablished the fact, that the horse was given for the claim only — and that if the money was not subse-. quently paid by complainant, it was to be no bargain : and generally substantiated the allegations made in the answer.
    The Chancellor, on hearing, decreed in favor of the complainant — vesting defendant’s interest in the. land in complainant, and creating a lien on the same, in favor of the payrnénts agreed to be paid by com-, plainant. From this decree the defendant took his.; writ of error.
    Chilton, for the plaintiff in errors
    Peck, contra.
   COLLIER, J.

— The defendant in error filed his-bill against the plaintiff, for the specific performance of a parol agreement, for the sale of land.

In the bill it is stated that the parties made an agreement for the purchase and sale of a half section of land, situate in the Coosa land district, on the twenty-sixth of December, eighteen hundred and thirty-three, by. which the plaintiff received, of the defendant, a horse, estimated at one hundred dollars, and was to receive one hundred dollars on the twenty-fifth December, eighteen hundred and thirty-four ; one hundred and fifty dollars, on the twenty-fifth of December, eighteen hundred and thirty-five; and’ the further sum of one hundred and fifty dollars, on the twenty-fifth .of December, eighteen hundred and thirty-sis. In consideration of which the plaintiff stipulated to purchase the half section of land in controversy, of the Indian reserves, (who was expected to be located thereon, under the treaty of eighteen hundred and thirty-two,) if he could' do so, and convey the title therein to the defendant. If the purchase could not be made of the Indian, the plaintiff was to retain the horse, for his trouble, and the defendant to pay nothing further.

The bill then alleges the location of the Indian ; the purchase of him, by the plaintiff; the certificate of his deed, by the government agent, and its approval by the President. It is further stated, that in faith of the agreement, the defendant entered upon, and made valuable improvements on the land; and that the defendant paid the plaintiff two hundred dollars, in the notes of one Steed: and, in January, or February, eigteen hundred and thirty-five, tendered him two hundred dollars, and demanded á title, which was refused.

The answer denies the agreement set out by the bill — states that the respondent sold to the complainant an improvement, which he owned, on the half section of land, designated in the bill, for a horse, estimated at one hundred dollars ; and at the same time agreed with him, that if he purchased the land, of the Indian reservee, lie would, convoy ike. title to him, up-* on complainant's paying two hundred dollars, to enable him to complete the purchase from the reservee; and two hundred dollars, in some short time thereafter — either of which sums the defendant denies the receipt of. lie admits that he received two notes, for the payment of one hundred dollars each, on Steed; hut insists that they were delivered to him, as a collateral security, for a note of one hundred' dollars, which respondent held on complainant, due some time previous to the notes of Steed.

Respondent admits that he refused to receive what complainant informed him was two hundred dollars, in specie, for the reason that the payments were not made by him, as he had stipulated to do.

The answer admits the possession of the complainant, and improvements made by him, yet relies upon the statute of frauds, as a bar to relief.

The depositions taken at the instance of the complainant, tend to prove a contract for the sale of the particular land in dispute; but the terms are stated by none of the witnesses, so as to enable us to determine what they were. David Conner, in his deposition, states that he understood the land was to be paid for by complainant, in eighteen hundred and thirty-four, eighteen hundred, and thirty-five, and •eighteen hundred and thirty-six; but how much each payment was to be, and what time in each year to be made, we are not informed. — Yet, the witness comes nearer to proving; the precise terms of a contract, than any one examined by the complainant.

It appears sufficiently, that the .sum to be given for the land, if purchased by the complainant, was -four hundred dollars, exclusive of the sum at which the horse was estimated — that the respondent became, the purchaser of the Indian reservee, and had the contract certified to him/ in the spring of eighteen hundred and thirty-four.

For the respondent, the deposition of Jesse Duren, (a witness to whom both parties communicated the terms of their agreement,) proves the contract to have been such as the respondent discloses in his answer — that the parties repeated’ the agreement in his presence, that he might bear witness to it. This witness is sustained by several others, whose testimony was taken by the respondent,

In considering the errors assigned, three prominent questions present themselves.

First. — Has the defendant in error made out, by proof, the agreement, the specific performance of which is sought by the bill to be enforced 1

Second — If the case stated in the bill is not made out by proof, would the defendant, if his bill embraced the agreement disclosed in the answer and proved by the depositions, be entitled to a specific performance 1

Third — If the defendant is not entitled to a specific performance of the agreement, should the Circuit Court have awarded an issue of quantum damnifíca-las, to ascertain the value of permanent improvements, with a view to decree him a pecuniary compensation for these 1

1. We have already said that the depositions taken by the defendant in error, tend to shew an agreement for the sale and purchase of the land in controversy. This agreement was conditional, depending upon the purchase by the plaintiff of the Indian reservee. This purchase was effected; so that the agreement became absolute; yet its terms are not shewn by proof, and as set forth in the bill, positively denied by the answer. It is true that the price agreed to be paid, is proved; but there is nothing in the record from which we can determine what was the credit, the times of payment, and what the amount of each payment. Without satisfactory proof to these points, how is it possible for the Courts to ascertain what was the entire agreement between the parties:—and unless this shall be known, how can it adjudge its specific execution 1

The part performance of a verbal agreement being shewn, proof aliunde is admissible to show what the contract was: but part performance can never be held to dispense with evidence of the particular terms of the agreement—and to authorise a decree for its consummation where these do not appear.

In the case of Rowton vs Rowland—it was the opinion of the Court of Appeals of Virginia, that where the evidence of a verbal agreement is contradictory, the statute of frauds is especially applicable.

In the case of Parkhurst vs Van Courtlandt.—it was held, that certainty in the proof of the terms of a parol agreement for toe sale of lands, was essential to authorise a decree for a specific performance.— That, the Court cannot, and ought not to male bargains for parties, or to determine what- one party ought to give and the other to take; and in the case of a lease, whether it ought to be for years or for Ife or lives, or in fee, and the amount of the rent, and whether payable in money or in produce, and in what periods.

If there is uncertainty as to the essential terms of written contracts, Chancery will not decree a specific execution. Do not the same principles and authorities which inhibit its interference in such cases,, apply with at least equal force to agreements resting in parol. — Jonham vs Child.

The learned Chancellor, in the case of Parhhursl et al vs Van Courtlandt, remarks, that “ the general language of the books is, that performance will not take a parol agreement out of the statute, unless the terms of the agreement distinctly appear, or are made out to the satisfaction of the Court.” To the same effect is the case of Phillips vs Thompson: in which case ^ is said to be well settled, that “if a party sets UP Part Pei’f°rmance, to take a parol agreement out of the statute, he must shew acts unequivocally referring to, and resulting from, that, agreement.”— Again: “ There must be no equivocation or uncertainty in the caseif the existence of the contract be not made, out by clear and satisfactory proof, as laid in the hill, there can be no decree for its enforcement. And further, it is not enough that there be evidence of some agreement, but it must be unequivocal and satisfactory evidence of the particular agreement charged in the bill. The case of Parhhurst, et al vs Van Courtlandt was taken to the Court of Errors, by appeal, and the Chancellor’s decree there reversed : but without unsettling the principle, that the agreement relied on, must be clearly and satisfacto rily proved

In equity,, as at law, it is well settled, that the allegata et probata must correspond; and however strong may be the proof of a complainant, and however clear his title to the aid of the Court, it is wholly immaterial if the allegations of his bill are not in harmony with his testimony — if cannot be received and regarded by the Court. — Drury, et al. vs Conner, et al.

In regard then to the first question, we think it clear that the defendant in error has failed to make good the case stated in his bill, by proof, and that the agreement,' shewn by the witnesses for the plaintiff, is not admissible, to make out the defendant’s case; for the reason that the allegations of the bill are unsuited to it.

2. Let it be repeated that the contract proved by the plaintiff’s witnesses required the defendant to pay him two hundred dollars at the time of the certification of his contract of purchase from the Indian, and two hundred dollars in some short time thereafter. If time be not an essential ingredient of the contract, the defendant might, upon submitting to perform his part of it, call on the plaintiff in equity, to execute it.

Time may be of the essence of the contract, and always is, where it is made so by its terms; and some able Chancellors have considered it to be so in every case in which the party who seeks- relief has been in default himself, without any just excuse, or any acquiescence or subsequent waiver by the other party-

Lord Loughborough, in the authority last cited. re_ marks — “ There is nothing of more importance, than that the ordinary contracts between man and man which are so necessary in their intercourse with each other, should be certain and fixed ; and that it should be certainly known, when a man is bound, and when Dot There is a difficulty to comprehend how the essentials of a contract should be different in equity and at law. It is one thing, to say the time is so essential, that in- no case, in which the day has been, by any means suffered to elapse, the Court would relieve against it, and decree performance. The conduct of the parties, inevitable accident, &c., might induce the Court to relieve. But it is a different thing, to say the appointment of a day, is to ha ve no effect at all; and that it is not in the power of the parties, to contract, that if the agreement is not executed at a particular time, they shall be at liberty to rescind it. In most of the cases, there have been steps taken.” Again, — “ I want a case, to prove, that where nothing has been done by the parties, this Court will hold, in a contract of buying and selling, a rule, that the time is not an essential part of the contract. Here, no step had been taken, from the day of the sale, for six months after the expiration of the time at which the contract was to be completed. If a given default will not do, what time will do'l An equity arising out of one’s own neglect ! It is a singular head of equity.”

This argument, alike distinguished for its perspicuity and force, induced the Lord Chancellor to conclude, in that case, that, as the vendor had omitted, for six months, to complete the purchase, he must he considered, after such a long default, to have abandoned the contract.

As the principle embraced in the question we are examining has never been very elaborately considered in this Court, it may be proper to inquire how it stands upon authority.

In Milward vs Thanet the master of the rolls rc-marked, that Lord Ken you was the first who opposed the idea, that a party might come at any time to enforce an agreement; and observes, that then, it was well understood, that a party cannot come into equity, for a specific performance, unless he had shewn himself ready, desirous, prompt and eager. In Guest vs Hornfray, the delay was hut three months, yet, in a bill filed by the vendor, to compel the vendee to accept, the title, and perforin his part of the agreement, the; Court held, that as the complainant liad not shewn that he had done all that he could, to he ready to carry the agreement into effect, at the time prescribed by its terms, and as the delay had never been approved or acquiesced in, the bill was dismissed.

•The case of Alley vs Deschamps, is analogous, nof only in principle, but in its circumstances, to the case before us. There, the purchaser filed a bilí for a specific performance. The purchase money was to be paid in instalments; the purchaser was put into possession. He paid one hundred pounds upon the footing of the contract. The bill was filed before the last instalment became due. The respondent, in his answer, stated that he considered the contract as aban-donded. The Lord Chancellor observed, that he, should take it, that the agreement had not been relinquished ; that the complainant had not consented to rescind it, yet, under the circumstances, there was no pretence for decreeing a specific execution ; that the bill, under the circumstances, could not be entertained. It was not permissible, for parties to lie by, to ascertain whether the contract was likely to prove a gaining or losing one, and either claim its performance or abandon it, according to the event— considering the lapse of time as nothing. — That but one small payment was made, and nothing proposed, until, by a subsequent event, the premises became much more valuable, than at the time the contract took place.

In the cases of Pinche vs Curtis and Fordyce vs Ford, the delay was brief and acquiesced in by Ihe parties who endeavored to take advantage of it. In the last case, Lord Alvanley observed, that the Court would not lend its aid to enforce the contract in favor of a party guilty of gross negligence; and that it must not be understood, from that decision, that a man was to have his own time to perform his contract.

Lord Hardwick held, that it was the duty of a Court of equity to relieve against lapse of time in the performance of a contract, and especially where the non-performance has not arisen by the default of the party seeking to have a specific performance. It may also be laid down as correct, that where one has been backward in performing his part of the agreement, Equity will not decree a specific performance in his favor.

• In the case of Benedict vs Lynch, the learned Chancellor says, it may then be laid down as an acknowledged rule in Courts of Equity, (and so the rule is considered in elementary treatises on this subject') that where the party who applies for a specific performance, has omitted to execute his part of tjie contract,, by the time appointed for that purpose, without being able to assign any sufficient justification or excuse for bis delay, and when there is nothing in the acts or conduct of the other party, that amounts to an acquiescence in that delay, the Court will not compel a specific performance. The rule ■appears to be founded in the soundest principles of policy and justice-. Its tendency is to uphold good faith and punctuality in dealing, &c.”

In the case of Doloret vs Rothschild the Vice Chancellor, in delivering his opinion, says — “ Where a Court of Equity holds that time is not of the essence of a contract, it proceeds upon the principle, that having regard to the nature of the subject, time is immaterial to the value, and is urged only by way of pretence and evasion. But that principle can have no application to a case like the present, where, from the nature of the subject, the value is exposed to daily variation, and a contract which was disadvantageous to the plaintiff, on the first of February, and w’ould therefore be declined by him, might he highly advantageous to him on the second of February.” In this case it is also supposed that there may be a conditional, waiver of the time; and unless the condition has not been complied with, the party insisting on time is not precluded.

We are aware that there are adjudged cases, in which it is laid down that time is never of the essence of a contract, in equity, unless made so by express stipulation. As, where it is agreed, that one or both the parties shall do such an act or acts, and in the event of a non-performance, that the agreement be void. These cases can not be adhered to at this day — they are incompatible with that morality which should be observed in the performance of contracts: and are overruled by the weight of opposing authority.

The proof shows, that at least eight or ten months were suffered to elapse, after the plaintiff’s purchase from the Indian was certified, (and when the defendant should have paid him two hundred dollars,) before he made an offer to pay him any part of the sum agreed as the value of the land ; and then only-proposed to make a payment of two hundred dollars, if a deed was executed, conveying to him the title. The defendant was obliged, by his contract, to have paid four hundred dollars, before he could demand a title, (no time being fixed, when it should be made.) The notes of Steed, which, by agreement of the parties are.copied, into the record, as part of the evidence, are for one hundred dollars each, and are payable several years after the contract was entered into, and nearly as long after defendant’s note to the plaintiff, for one hundred dollars, became due. The defendant alleges that these notes were received' in part payment of the purchase money for the land.— The answer denies it, and insists that they were received as a collateral security for defendant’s note to theplaintiff. The answer, in this particular, both negatives and avoids the allegations of the bill; but, the matter of avoidance occurring simultaneously with the reception of the notes, it must be taken to be part of the res gestee, and as such, evidence for the plaintiff. According to this view of the case, the defendant has not moved in the performance of his part of the contract, either by paying money, or offering to pay, but with a requisition he could not make.

Again — the proof shews, that the land, at the time of the purchase from the Indian, was not worth more than from three to five hundred dollars, so that the defendant's contract was on fair terms, only, without being greatly advantageous to him — consequently, his anxiety to consummate it could not have been so great, then, as at the time of the exhibition of his bill, when it had advanced in value at least one hundred per cent. The price of lands, in this country, we know, as a matter of history, has increased rapidly, and to an enormous extent, in the last four or five years.

Had the defendant have performed the agreement, on his part with punctuality, as events have shewn, the bargain would have been advantageous to him ;• and, in all probability, would not have been disadvantages to the plaintiff, who, it seems, was engaged in speculation in Indian lands, and could have reinvested his money to profit. But, it can not be in-= dured, that the defendant should lie still, until he ascertains that his bargain is beneficial, and then, by offering to perform his part, enforce its execution.

So, that whether we adopt the rule as to time, irt the unqualified terms in which it was laid down, in Benedict vs Lynch, or take it as applied in Bohr el vs Rothschild, it is clear, that it is not competent for the defendant to enforce the agreement set up in the an--swer. We think, however, that the true rule on this subject is as we have quoted it from the former case. —It is one which can work injury to no person, and is calculated to advance integrity and punctuality in dealing.

Third. — Having shewn that the defendant in error was not entitled to a decree for the specific performance of the agreement set out in his bill, because he has failed to prove it — and, that the plaintiff denied it, by his answer, and set up an agreement very different in its terms, and has proved such to have been the agreement of the parties, — and, having shewn, that Equity would not execute this contract, at the suit of the defendant, on account of laches in the performance of his part of it — it remains, to inquire, whether the cause should be remanded, that an issue of quantum damnificatus may be awarded.

Where it appears that a contract for the sale and purchase of lands was made, upon the faith of which the vendee took possession and made valuable and permanent improvements, though he can not coerce its specific execution in Equity, either because the agreement is imperfect, or its precise terms can not be shewn, the bill should be retained, to decree a pecuniary compensation equivalent to the improvements. If equity did not afford this redress, the.ven-dee would sustain an injury, for which he would be remediless, or else have a remedy at law, at best doubtful and inadequate.

Chancellor Kent, in the case of Phillips vs Thompson, in examining this subject, says — “ I have no doubt of the jurisdiction of this Court over this case, and that it can cause the damages to be assessed either by a reference to a master, to inquire into, and report them, or by an issue of quantum damnificatus. The case of Denton vs Stewart, before Lord Kenyon, when master of the Rolls, was to this effect. That case was afterwards approved ad followed by Sir William Grant, in Greenaway vs Adams.'”

Again — “ The'cases are numerous, in which the , Court of Chancery has caused damages to be assessed, either by an issue, or by a master, at his discretion^ — Hedge vs Everand; Cudd vs Rutter ; Errington vs Aynesley. I believe, the more usual course, where the damages are not a matter of mere com-potation, is by awarding an issue; and, under the circumstances of this case, I deem it the more advisable method.” — Parkhurst vs VanCortlandt.

If nothing more appeared in the cause, relating to o 1 i. j o an agreement, than what is stated in the bill, and what may be gathered from the depositions taken by the complainant — (in as much as these shew some agreement, yet so imperfect that it can not be enforced specifically,) we should remand the cause, that an inquiry might be made of the value of improvements made in faith of its performance. But, when we look into the answer, and the depositions taken to sustain it, the case assumes a different aspect. The contract which they make out, disproves the case stated by the bill, and shews an agreement not imperfect in its terms, but one that can not be enforced at the suit of the defendant, because of his neglect, in refusing to comply with the stipulations, on his part. The contract, then, being relinquished by the defendant, the parties are to be remitted back to their rights, as if no contract had ever been made. This being the predicament of the defendant, caused by his own neglect, let us inquire if he had entered without a license, or even by permission, and made improvements, if he could recover their value.

A party can not claim a compensation for a trespass by himself, on the ground, that the party against whom it was committed, had derived a benefit. And there is quite as little pretence in favor of a claim to compensation, where one, entering under a naked license, makes improvement. The defendant comes into Court, thus circumstanced, — lie can not insist on an agreement, either perfect or imperfect, under which he expended money or labor, and consequently having sustained no damages which the plaintiff can.be called on to compensate, an issue cannot be directed to enquire of the extent of them.

If the contract be as the plaintiff has maintained it to be, or as the defendant insists it was, in either case our decree may operate hardly upon the defendant. Be this as it may, we do not sit here to mould .and change the principles of law, so as to prevent the least amount of individual injury in each case, but we endeavor to ascertain and apply these principles, so as to be most promotive of justice in all: esteeming it far better, that, in a few cases, loss should be sustained, than that general principles, intended to control the affairs of an entire community, should be made to bend.- — Jackson vs Sill (by Mr. Justice Thompson,)

The result of our reflections is, that the decree of the Circuit Court must be reversed, and the bill dismissed, without prejudice to an action or actions at law, or bill in equity, to recover back money or property paid or delivered upon the faith of an agreement, for the purchase of the land in dispute.

And, the defendant, failing to establish a right, it is further ordered and decreed, that he pay the coste of this Court, and the Circuit Court.

       JFonb.E. 172

       1 Hon. & Munf. 91.

       llohn.Ch 'R.281.

      1 Bro. 82.

      tAmb. 586 2 Sciff & 459l_3Atk 47o"uVes’

      4 johnny R-15,

      6Har.& J.288;also 4Eng.con

       2 story’s ®*e^5’’6j johns.c.R, yesTss* Bro. 469.

      5¥<!3"720

      sib. sis.

      c;¡:i3ib.224

      t4it>r°494^

      nves 450

       53Jiner>

       37onS’C

       vNewiand SugCL tf’ Ven. 26s

       ch^so-i

       ch’r'™']

      ti Fanb 38 565y'nanb! and X Ves. jr. 339.

      i2Ves395

        ffitonbm.

      Ab.is.pi.r

       570.

       2Bl0'341

       1 Johns. Cb.R.273; 2Scho-5¡' Lef 513*

      11 Johns 220.


source: Caselaw Access Project

author: GOLDTHWAITE, J.

license: Public Domain

text:
    ARRINGTON VS HOWELL.

      Practice in the Supreme Court.

    1. This Court will not refuse to render a judgment on certificate, where the transcript has not been filed within the 'three first days of the term, merely on affidavits that the case is not brought up for delay, and that the Clerk below, is interested, and has not sent up the transcript — it not,appearing that any diligence Has been used, to obtain the transcript from the .clerk.
    A motion was made, by Clark, in this ease, for the affirmance of the judgment rendered below, on the certificate of the clerk of the Circuit Court of Wilcox County. The motion was resisted by Gibbons, on the strength of sundry affidavits, shewing, that this was not a delay case — that the record had been made out, and was expected to have been forwarded to this Court — that other records had been sent from the same clerk, — that he was a party in interest in this cause, and retained the record until called for, by the plaintiff in error, or his attorney, for the purpose of effecting an affirmance on certificate.
   GOLDTHWAITE, J.

— These affidavits certainly present a strong case, and if the Court could exercise a discretion, it would be inclined to deny the motion; or, having possession of the certificate, to award a certiorari, to complete the record. But the statute seems to be imperative. -It is to be.found in Aikin’s Digest, and provides that the citation, with a transcript of the record in the cause, shall be delivered to the party applying for the writ of error, or his, her, or their attorney, to bo, by him or them, returned to the nest term of the Supreme Court;” and if the record is not filed on or before the third day of the Court, it shall be lawful for the Court, on the production of the citation served, or a proper certificate, to render a judgment of affirmance — “ unless the plaintiff" in error, or some other person, shall make affidavit, that the transcript of the record could not be procuredfrom the clerk."

The affidavits submitted in this cause, seem to admit that the record is ready, awaiting an application for it. The Court does not wish to be understood as deciding, that application in person would be necessary — but, that it must be shewn, that the record could not be obtained from the clerk; after using ordinary diligence. Nor is it supposed by the Court, that its recognition of the strict rule imposed by the statute, can be productive of hardship, as if can always grant the necessary relief, where it can be shewn, that the record can not be procured; or when it shall be produced at a subsequent day,in term.

Motion granted.

       PageSS6,


author: GOLDTiiWAITE, X

text:
    ENGLISH VS ANDREWS.

      As to suits abated in the Supreme Court.

    1. Where the death of a plaintiff in error is suggested, and no personal representative afterward appears, the suit will be abated: — but judgment can not, in such case, be rendered against the sureties to the writ of error bond.
    Porter, of counsel for the defendant in error,
    moved to abate this suit, and asked for judgment of af-firmance against the sureties to the writ of error bond. And he shewed, by the minutes of Court, that at the last term, the death of the plaintiff in error, had been suggested; and that no personal representative had appeared.
   GOLDTiiWAITE, X

— The death of the plaintiff in error was suggested at the last term of this Court, andno personal representatives have made themselves parties to the suit.

It is now moved by the defendant in error to abate the suit, and to render judgment against the securities on the writ of error bond.

The suit musí ¡be abated on the authority of the case of Evans vs Boggs et al. but the Court does not think that it is authorised to render a judgment against the securities on the writ of error bond.

The act of eighteen hundred and fifteen, provides, that in case of dismission or discontinuance of the cause, the Supreme Court shall render judgment against the principal and security.” And the act of eighteen hundred and twenty-six, provides for cases of affirmance, and for cases in which judgments shall be rendered against the plaintiffs in error.

The case of an abatement of a suit does not seem to be provided for, by either of these statutes. The latter part of the motion is consequently denied.

       Minor's k 354-

       Aflc. Dig.

       Aik. Dig.


author: HOPKINS, C. J.

text:
    WISWALL VS ROSS and EARLE.

      As to proof and acknotdedgment of deeds¡

      As to trust deeds, and the assent of the cestui que trust-,

      As to evidence rejected by inferior Courts¡

    1; That part ofllie ordinance for the government of the Territory of the United States, which authorised estates to be conveyed by deeds of release, or bargain and sale, attested by two witnesses, was repealed, in this State, by implication, by the act of 1803, respecting conveyances.

    2. A deed of lands not attested by witnesses, but acknowledged alld certified according to the provisions of the act of 3803, is as valid as if executed before witnesses.
    3. Where a deed is executed to one in trust, it is not essential to its validity, that a corporation, or person for whose benefit the deed is made, should execute or express an assent to it:^in the absence of proof to the contrary, the assent of the beneficiary will be presumed.
    4. Where a grantor in possession, executes a conveyance to one as a trustee, the title of the latter, after a sale under the trust deed, cannot be defeated by evidence, adduced by a subse- . quent purchaser from the grantor — that he was in the adversé possession of the estate, when sold and conveyed by the trustee;
    5. One taking a mortgage of lands, after the mortgagor has, by previous deed, conveyed the same premises to a trustee, for the payment of a debt, would under a foreclosure and deed under it, take only such interest as the mortgagor has left after the trust deed is discharged.
    g. Where the competency of matter offered as testimony, depends upon a fact of which there is no proof, or offer of proof —it is.not error for a Court to reject it.

      7. A sale made by a trustee, under a trust deed to pay debts, would not be void, because the advertisement of the sale omitted to specify the amount of the debt for which the property was sold.
    8. Testimony having any legal effect in a cause, can not, in respect to its weight, as proving a fact, be determined by the Court-. But, whether evidence tends to prove what is pertinent to an issue, may properly be considered by the Courti
    On writ of error to the Circuit Court of Mobile,
    This was trespass, to try titles to certain lots of land, in the city of Mobile, by Ross and Earle against •the plaintiff in error; and upon the plea of not guilty, a verdict and judgment were had for the plaintiffs below.
    By a bill of exceptions, it was shewn-’ — that the plaintiffs, to maintain the issue on their part, produced, and read in evidence a deed of trust bearing date the eighteenth day of March, eighteen hundred and twenty-five, between Stephen Chandler, and Rebecca, his wife, of the first part, John B. Hazard of the second part, and the President, Directors and Company of the Tombeckbee Bank; of the third part: which deed conveyed from Chandler and his wife, to John B. Hazard, in trust, the lands in dispute in this action, for the purpose of securing to the Tombeckbee bank, a certain debt. The deed was; attested but by one witness, but was acknowledged by Chandler and his wife, and admitted to record.
    Wiswall, by his counsel, moved to exclude this deed from the jury, but was overruled by the Court.
    Wiswall took a further exception to the deed, that it was not signed or sealed by the Tombeckbee Bank Company. Defendant then produced and offered in evidence, a deed of mortgage, dated thirty-first of May, eighteen hundred twenty-five — whereby Chandler conveyed the same premises to the defendant. And he likewise offered in evidence a bill in equity to foreclose the mortgage — a decree of foreclosure, an order of sale under it, and the deed of the master in Chancery to the defendant, as the purchaser. But all these matters, the Court excluded from the jury.
    It appeared in evidence, that other property of Chandler had been mortgaged to secure the debt due to the bank, which was five thousand dollars, due on the seventh June, eighteen hundred and twenty-five, which was sold for' the sum of three thousand seven hundred and fifty dollars: that the notice of the time and place of the sale of the premises in dispute in this action, as advertised by Hazard, specified all the property; but did not mention the amount of the balance due on the said debt; nor had the amount paid been credited on the deed of trust or mortgage.
    The defendant, by his counsel, prayed the Court to charge the jury — that if the advertisement did not show what amount was due by Chandler to the bank, the sale was not a fair oné ; and the plaintiff could not recover. To give which charge, the Court refused; and instructed the jury, that the circumstan-' ces did not amount to unfairness.
    To these matters the defendant filed exceptions.
    Argued by
    Sallee, for the plaintiff in error.

       Atkin's Digest, page 83-■n

   HOPKINS, C. J.

— Upon the trial of this case, in the Circuit Court of Mobile County, the defendants in error, who were plaintiffs in that Court, offered as evidence, a deed of trust, made on the eighteenth day of March, eighteen hundred and twenty-five, between one Stephen Chandler and his wife, of the first part, John B. Hazard, of the second part, and the President, Directors and Company of the Tombeckbee Bank, of the third part, by which the parties of the first part conveyed to Hazard the three lots of land in controversy between the parties to this suit, to secure a debt due from Chandler to the Tombeckbee bank. The defendants in error claimed title to the lots by a purchase of them, made at a sale by Hazard, as a trustee, under the deed from Chandler and his wife. Wiswall excepted to the opinion of the Circuit Court, which overruled his motion to reject the deed, as evidence.

In support of this exception, so much of the ordinance for the government of the territory of the United States, north-west of the river Ohio, is relied upon, as authorised estates in that territory to be conveyed, by deeds of lease and release, or bargain and sale, attested by two witnesses. This part of the ordinance was extended, by the articles of cession and agreement between the United States and the State of Georgia, over the territory ceded by the latter to the former.

If this part of the ordinance be the law of the State; the deed of Chandler and his-wife, which was attested by one witness only, conveyed no interest in the lots to Hazard. The title to land can be acquired, only according to the laws of the country where it is situate.

It was decided by this Court, in the case of Roh ertson and Barnwell vs Kennedy and Kitchens, that the ordinance was superseded by the adoption of the constitution of this State. Without determining what would have been the effect of the constitution Upon the ordinance, if the latter had continued in force until the former was adopted, we are of opinion, that the part of the ordinance which is relied upon in this case, was repealed by the statute of eighteen hundred and three of the Mississippi territory. By the terms of the ordinance, this part of it was -made revocable, by the legislative power of the territory.

The first section of the act of eighteen hundred and three, authorised any Judge of the Superior Court of the territory, or' any justice of any Court of the County in which the land included in any deed was situate, to take the acknowledgment of the party, who had executed a conveyance of land, that such party had signed, sealed and delivered the same, as’his voluntary deed. Any such officer was authorised, also, by the same section, to take the proof of the execution of any such deed of one or more subscribing witnesses to it

It was further enacted, that if a certificate of such acknowledgment or proof shall be written upon such deed, and signed by the officer before whom the acknowledgment was made, or the proof was taken, then, every such deed, so acknowledged, or proved and certified, shall be received in evidence, in any Court of the territory, as if the same were then and there produced and proved.”

If a certificate of the proper officer of the grantor’s acknowledgment, be not as full and conclusive proof of the execution of the deed as two attesting witnesses could make, it is not evidence from which a grantee can receive any benefit; if he could not prove that two witnesses attested the execution, the proof of the grantor’s acknowledgment of the same fact would be without any effect. The acknowledgment authorised by the statute, is of the execution of the deed, and the execution includes every thing necessary to make the deed complete. A deed without witnesses, but acknowledged and certified according to the act of eighteen hundred and three, is as valid as it would be with any number.— By the seventh section of that statute, it was enacted, that any deed of land made after the passage of the act shall be void against a subsequent bona fide purchaser or mortgagee, for a valuable consideration, not having notice thereof, unless such deed shall be acknowledged, or proved and certified, and lodged in twelve months after the time of signing, sealing, and delivering the same, with the clerk of the proper County Court, to be recorded; provided, that such deed shall, as between the parties and their heirs, be valid and operative. This section discloses clearly ; . * , -it . Í the intention of the Legislature, that a deed made after the enactment of the statute, should be as perfect without, as with an attesting witness, — if without a witness it be acknowledged by the grantor, certified and delivered within the time limited, to the clerk of the County Court of the proper county, to be recorded, it is valid, not against the grantor and his heirs only, but against any subsequent purchaser from him. If no such acknowledgment be made, the deed, if its execution can be proved according to the Common Law, is binding upon the grantor and his heirs.— Statutes enacted since the one of eighteen hundred and three, authorise other officers than those which hare been mentioned, to take and certify acknowledgments of deeds. The enactment in the statute of eighteen hundred and three, of what proof should be required after its passage, of the execution of a deed, is inconsistent with the ordinance; The statute waSj therefore, we think, a repeal, by implication, of the part of the ordinance, upon which the plaintiff in er-rorhas relied.

After the execution of the deed of trust, Chandler" ' mortgaged the same premises to the plaintiff in error, who shortly afterward obtained a decree for the foreclosure of the mortgage, and the sale of the lots. At the sale, the plaintiff in error became the purchaser, and received a conveyance of them from the commissioner appointed by the Court to make the sale. The mortgage, the judicial proceedings upon it, and the deed from the commissioner to Wiswal], were offered by him as evidence on the trial of the cause, and rejected by the Circuit Court.

To sustain the exception to the opinion of the Court, against the admissibility of these deeds and proceedings, as evidence, two positions are relied upon. The first is, that as the deed of trust was not executed by the President, Directors and Company of the Bank, it conveyed no interest to Hazard, the trustee, but made him an agent of Chandler alone, with power to sell the premises. That, as his authority was not connected with any interest of his own in the premises, it was revocable,- and was revoked by the execution of the mortgage, before the power was executed. The consequences of this position, if it be well taken, would be, that the purchaser from the trustee acquired no title, and that the rejected deeds were competent testimony to show that Hazard had no authority to convey the estate' when he made the deed to his vendee. This view of a trustee’s power, is opposed by the settled doctrine on the subject, which gives to the deed the effect of vesting- the legal estate in the trustee, and neither requires the corporation or person for whose benefit the deed is made, to execute or express his assent to it. In the absence of proof to the contrary, the assent of the beneficiary is presumed. J

The other ground relied upon to show the competency of the rejected deeds as evidence, is, that the fact could have been proved by them, that the plaintiff in error was in the adverse possession of the premises, when the trustee sold and conveyed them, and that, therefore, the deed of the trustee was void.

It does not appear from the record, that-there was any stipulation in the deed of trust'to Hazard, that Chandler should retain the possession of the lots until the trustee sold them, or that Wiswall had entered upon the premises before they were conveyed by Hazard. But, the principle upon which the last objection to the deed of Hazard to the defendants in error, is founded, does not, in the opinion of the Court, apply to a sale made by a trustee under a deed creating the trust, at a time, when the grantor in the deed of trust was in the possession of the premises, which were conveyed to the trustee. A sale by a trustee, in such a case, cannot be productive of the mischief, which the principle is relied upon to. pretent; The application of the principle to such a sale would enable a grantor in a deed of trust who was left in the possession of the premises, to defeat his own conveyance founded upon a valuable and adequate consideration, by conveying the same estate to another person,- and putting him in possession with a color of title. Authority, as well as what appears to’ us to be reason,- exempts such a sale from the opera-. 'A * tion of the principle.

Wiswall acquired by his purchase under the decree for the foreclosure of his mortgage, the interest only that Chandler had, and which was subject to the' deed of trust. The decree made in a suit, to which Hazard and the Bank were no parties, could not enlarge the interest of Chandler, change the charactei of his estate, or enable Wiswall to acquire more than Chandler had to convey when he executed the mortgage. The sale of the trustee ascertained that it required the whole estate to pay the debt, for the discharge of which the trust was created, and that there was no kind of interest left undisposed of, to' which the claim of the plaintiff in error could attach.

- It was proved upon the trial of the cause, that for the debt of the Bank, which was five thousand dollars, there was an additional security in a mortgage on other property of Chandler.- That three thousand seven hundred and fifty dollars of the debt were paid by a sale of the mortgaged property, and that the three lots were sold together by the trustee for one thousand and fifty dollars. As a part of the debt had been paid before the lots were sold by the trustee, it has been contended for the plaintiff in error, that he had the right before Hassard executed the trust, to tender the balance of the debt due to the Bank, and relieve the premises from the incumbrance of the trust That if he tendered the balancé, he was not entitled to any benefit from his act without giving the deeds which he offered in evidence, to show that he had the right to do, what it is supposed he may have done. It does not appear that the plain-tiff in error offered proof of his having tendered the1 balance of the debt to the Bank, and if he intended to show that his mortgage, the judicial proceedings upon it, and the deed from the commissioner to him, were competent evidence, by proof that he had tendered the balance of the debt before the trustee sold the lots, he should have offered the proof of the tender in connexion with the proceedings and his deeds. If the competency of any matter as testimony, depends upon some fact, of which there is no proof, there is no error in rejecting such matter, when presented alone, and without an offer to prove what might make it competent evidence.

It appears also from the record, that the trustee advertised the three lots for sale, and did not state in his advertisement the amount of the debt secured, or that any part of it had been paid. That he offered and sold all the lots together, for the sum which has been mentioned, and there is no proof that the sum was not the full value of the lots. No credit, for the previous payment of a part of the debt, was indorsed either upon the deed of trust or the mortgage. Upon the evidence which has been mentioned, the plaintiff in error moved the Circuit Court to instruct the jury, that if the advertisement did not show what sum of money was due by Chandler-to the Bank, the sale was not a fair one, and the defendants in error were not entitled to recover. The Court refused to give the instruction, and instructed the jury, that the circumstances did not make the sale an unfair one. — ■ We are of opinion the instruction was properly refused. Proof of the omission in the advertisement, of the amount of the debt, did not make the sale void. When property is advertised to be sold absolutely— persons who desire to purchase it look to the advertisement, not for the amount of the debt to be paid from the proceeds of the sale, but for a description of the property, that they may ascertain its value, and, determine whether or not they will prepare to become bidders at the sale. As there was no proof that the lots were sold for less than their value, and none to show any thing improper in the sale, there was no error in the instruction of the Court, that there was nothing proved, which shewed that the sale was an unfair one. When there is testimony which has any legal effect in a cause, it would be error for the Court to determine the weight of it, or the fact that it did or did not ascertain. But whether evidence tends to prove any thing pertinent to the issue, is a question for the Court, and if there be no testimony that ought to have any legal effect, it is not error for the Court to inform the jury that it does not prove what it does not tend to prove.

The judgment is affirmed.

GOLDTHWAITE, J. not sitting.

       ’|t8wnrf>

      Aik. Dig-88,91, n. I.

       ?4£bJe»™ — 1 picki 45 — 10 ib. 39-iPayn. W.

       n wheat 73 97_2 stéwart98 103'

       ^lAik' ixéD 16 — 5 Am. SEw!3’


text:
    PORTIS VS CREAGH, ex’or.

      As to proceedings in the Orphans’ Court, on the settle? merit and distribution of estates.

      As to joinder of parties, in writs of error.

      1. In proceedings before the Orphans’ Court, on the settlement of estates, such entries should be made, as to show — at whose instance settleme.nts are ordered — what representatives appear before the Court, and who claim under the estate, and are actors in the cause.
    •2. Cases may present themselves before the Orphans’ Court, where that Court might properly pass upon the account of the executor, and yet have no power to order distribution.
    .3. Thus, where a testator, by last will, vested the management of the estate in his wife, and authorised certain property to be divided, under her direction' — giving to some heirs, slaves, to some, money, and making the share of others depend upon a certain event — it was held, under the facts, that the Orphans’ Court, had no power to order a distribution.
    4. One Executor, complaining of the judgment or decree of the Orphans’ Court, rendered against several executors jointly, can not prosecute a writ of error, without using the name of all; which he may do, without the consent of the others.

      15. A writ of error to a decree or judgment against three execu- " tors, prosecuted only in the name of one, should be disroiss- ■ ,e.d on the mere act of the Court itself.
    In error to the Circuit Court of Clarke County.
    This case originated in proceedings, carried on in the Orphans’ Court of Clarke County, and removed thence, to the Circuit Court, by Garrard W. Creagh, an executor, against whom, with others, a decree of the Orphans’ Court had been rendered. From the record, the following facts appeared:

      On the seventh day of November, eighteen hundred and twenty-five, the will of Ira Portis, deceased, was admitted to probate, in the County Court of Clarke County. The will is in these words—
    “In the name of God. I will, ordain, and constitute, this my last will and testament, in words and figures as follow. My will and wish is, that my es-. tate be managed by my wife and three of my neigh-, bor friends — such as the County Court may appoint, that will act; and that they be well paid for their-trouble. I want them, and authorise them by this, will, to sell such • part of my estate, as they may think best for the estate — either lands, negroes or other property; or hire out negroes, or rent out. lands.
    “ My children I want to be learned some occupation. — If any of them seems to learn well, and it is. best for them to study a profession, set them to do so: if others seem disposed to till the soil, set them to do so — as I wdsh all my children to have as good an education as their occupations may require.
    “ When the first of them shall come of age, or marry, I want those commissioners, whom I clothe with all the authority of executors, to value the two thirds of my estate, after leaving one third of all real and personal property, for my wife, into as many lots or apportionments as there are children of mine, and give them, as they come of age, or marry, each one, his or her proportionable share — observing to give each one such negroes or land as my wife shall think best — as I want children and negroes, all accommodated, if it can be done; and I wrant thp most obedient children to have the most obedient negroes, or such as their mother thinks will suit best.
    “ If my children should, any of them, be obstinate —will not obey their mother, I want them bound to some man, as will not let them stroll about in mischief. If either of my daughters many a man of smartness and care, I want their share given them in full; but if the reverse, to a scamp, gambler, drunkard, and so forth, make their share very short, and that of the sorriest sort, or none, if he is likely to spend what he gets.

      “ If my wife die before any or all of my children get their shares, I want her third thrown in and divided; and if any have drawn their share of the two thirds given them, with the others, which have not drawn their share of the one third reserved to her, for life, and then share the whole estate, or each, one part, as before divided. — *As I do not mean by this will, that each child shall have his equal share of all the land and all the negroes- — as it will be best for some of them to have'land, and some negroes, or perhaps some money — so each gets his share in value, as before directed.
    “ I will name, for commissioners or executors, if they continue in the neighborhood, and will act, Edward Kenedy, Robert Lee, and William II. Jones.— If they, or either- of them do not act, I want the County Court to appoint, such as will act.”
    This will was signed and witnessed in such manner as required to pass real estate, and letters testamentary were granted to Mary Portis, as executrix ; Robert Lee and William H. Jones, as executors, and G, W. Creagh, to act as executor with them, in com formitv with the power of appointment given by the will.
    The estate of the testator, as appeared by the inventories in the record, amounted to near fifteen thou-’ sand dollars, and consisted of slaves and other personal property, and lands.
    Inventories of the estate, and an account sales of a portion of the same were returned by William H¡ Jones, Robert Lee, and G. W. Creagh, after which no further action on the said estate, or in relation thereto, was had in the said County Court, until the fourth day of November, eighteen hundred and thirty-three, when the following order was made :
    “Ordered by the Court, that a citation issue to G.W. Creagh, Mary Portis, (now Mary Gordon,) and Robert Lee, executors of the last will and testament of Ira Portis, deceased, that they be and appear before the honorable the Orphans’ Court of Clark county, to shew cause, if any they have, why said estate should not be settled according to law.

      “ Ordered, that notice be given by publication in the Mobile Commercial Register and Patriot, for six months successively, to all persons interested in the estate of Ira Portis, deceased, that the executors of said estate will, on the first Monday in January next; present to the Judge of the County Court of Clark county, State of Alabama, at Macon, their accounts and vouchers, for allowance and final settlement, at which time all persons interested will attend, if they think proper»”
    On the first Monday in January, eighteen hundred and thirty-four, it was ordered by the Court, that the' joint report of G. W. Creagh, one of the executors of the estate of Ira Portis, decéased, and William F. Jones* administrator of the estate of William H. Jones, deceased, was ordered to be received, recorded and filed. As their accounts are not necessary to the understanding of the case* it is not deemed necessary to further advert to them;
    The. final settlement of the estate was continued or postponed, from time to time, until the first Monday of June, eighteen hundred and thirty-four* when the' following' entry appeared in the record of the cause:
    “ On this day, tile executors of5 Ira Portis appeared, in conformity to public notice, which notice had been agreeably to law, and presented their account against the estate of Ira Portis, for final settlement.”
    Who the executors were, who appeared, could not be ascertained, with certainty, from the'record. The citation was ordered against G¡ W. Creagh, Mary Portis, now Mary Gordon, and Robert Lee: and it may be fairly inferred from subsequent parts of the record, that they were present. No suggestion of the death of William H. Jones, other than the rendition of the account by his administrator, appeared; hor was any suggestion made of the intermarriage or coVerturé of Mary Portis, though it may be inferred that she was then known by the- name of Gordon — ■ most probably a widow a second time. Nor did it in any manner appear, other than by the rendition of judgments in their favor, what individuals interested in the estate, were before the Court. The record then proceeded to state :

      c: The executors presented their accounts against the estate of Ira Portis, up to- this date. This account was objected to, in this shape, and the executors were ordered to present their accounts against the estate up to the time the first heirs married or came of age; and against the estate and individual heirs after that time. The executors then presented their accounts against the estate up to January, eighteen hundred and twenty-eight, for the sum of two thous- and nine hundred and twenty dollars and seventy-nine cents, which was allowed, and passed by the Court.
    “ The executors then presented their accounts against the individual heirs, for board, tuition and clothing, properly proven and authenticated, up to this date; which the Court rejected. The Court decided, that the executors had no right, after the first heir married, or came of age, to charge either the estate, or the heirs individually, for either board, tuition or clothing; and that if the executors had paid their accounts for either, they must look to the heirs or their guardians, in another Court, for the reason that, at that time, the plantation was broken up, and the property partly distributed among the heirs.
    “ It also appeared, on the examination of all the accounts, claims, and vouchers, which the Court admitted, against the estate, and the amount which the executors had received for said estate, from all sources, that the sum of seven thousand nine hundred and ninety-five dollars and sixty-three cents, still remained in their hands unaccounted for; and thesum of two hundred and ninety-six dollars and sixty-five cents, theretofore retained as due said estate, from the estate of William H. Jones, a former executor-amounting, in all, to the sum of eight thousand two hundred and ninety-two dollars and twenty-eight. cents ; which said sum was ordered and decreed to be distributed among the heirs, in the following manner :

    To Mary Portis, former widow, $191 48J
    “ Samuel M’Call, in right of his wife, 50 92f-
    “ Joseph P. Portis, - - - - 50 92£-
    “ Solomon W. Portis, - 152 17^-
    “ Samuel G. Portis, ----- 352 82|-
    “ Norflet Goodwin, in right of his wife, 646 49£-
    “ David Y. Portis, - -• - - 794 89:|:
    “ John W. Portis, -• 794 89j|
    “ Edmund M. Portis, - 794 89|-
    “ Benjamin P. Portis, - 794 89|-
    “ Darius M, Portis, - - -■ - 794 89§
    $5,420 32|
    Which said several sums it was ordered, should be paid, by the said executors, to each heir respectively, for which execution might issue; except in the cases of John, David, Edmund, Benjamin and Darius — in which cases, if executions were required before the first day of January, eighteen hundred and thirty-five, the sum of one hundred and sixty-one dollars should be deducted, in each case ; and after the first day of January, eighteen hundred and thirty-five^ execution might issue for the full amount.
    The record contained the remitiiws of several of those persons, for portions of the sums decreed to them ; and proceeded with a statement of particular slaves, and cattle, having been delivered to the widow and many of the heirs before named ; and then proceeded with—
    “It also appeared to the satisfaction of the Court, that the following negroes,” (specifying twelve, and
      their respective real value, (“ were still remaining in the hands of the executors; and thereupon, the executors produced the lots in which they had divided the negroes, when the first heir marriedand the Court ordered that a let be drawn for each heir; — - whereupon David Y. Portis drew ILyden,” and others, valued at six hundred and twenty-five dollars and the others were divided in the same manner, among several of the children. And, in relation to the negroes drawn by David Y. Portis, the Court “ordered and decreed, that the executors deliver the said negroes to David Y. Portis, after the first day of January, eighteen hundred and thirty-five.” — And a similar order was made, in relation to the negroes drawn by the other children.
    The Court then proceeded to make an order, in relation to the payment of monies, which should subsequently be received by the executors, of a sufficient sum to each heir, to equalise the respective value of the slaves drawn by them.
    It also appeared in the accounts as stated, that the sum of seven hundred 'and forty-two dollars would be due, for negro hire, on the first of January, eighteen hundred and thirty-five, which formed a part of the sum ordered to be distributed.
    The record of the acts of the County Court was concluded by the following order.
    “ It appearing to the satisfaction of the Court, that the executors have fully accounted for all the funds which have come into their hands up to this date ; and Robert Lee, one of the executors, having come into Court, and tendered his resignation, as executor of said estate, — It is ordered and decreed, that Robert Lee be henceforth discharged from any farther liability as executor of said estate.”
    On the twenty-first of July, eighteen hundred and thirty-four, G. W. Greagh sued out his writ of error, to the Circuit Court, to reverse the proceedings of the County Court, so far as related to the judgment of the^Court in favor of David Y. Portis; and on the return of the record into that Court, assigned for error—
    1st. That the Court below erred, in not allowing and passing the accounts of the executors of Ii’a Portis, up to the day of settlement.
    2ndly. In not allowing the account of the executors, for board, tuition and clothing, when presented, properly proven and authenticated, against the individual heirs; and in refusing to pass the account of David Y, Portis, who was one of the individual heirs.
    3dly. In giving judgment against the executors, for the hire of negroes, for the year eighteen hundred and thirty-four, which appears by the record, not to be due until the first of January, eighteen hundred and thirty-five.
    4thly. In ordering a division of the remaining ne-groes, by lottery.
    5thly. In ordering that the executors should deliver to the said David Y. Portis, the negroes drawn by him.
    Gthly. In ordering the sum of one hundred and sixty one dollars should be deducted from the judgment rendered in favor of said Portis, if execution on the same, was required, before the first day of January, eighteen hundred and thirty-five.

      On these assignments of error, there was a join-der in the Circuit Court, which, at the fall term, eighteen hundred and thirty-four, reversed the judgment of the County Court, and remanded the cause for further proceedings. Portis now re-moves that judgment to this Court, by writ of error; and assigns for causes of error, that the Circuit Court reversed the judgment of the County Court.
    Bagby, for the plaintiff in error.

      Porter, contra.
   GOLDTHWAITE, J.

— It is apparent, that this record presents some striking irregularities, in relation to the statement of the names of the contesting parties — the several interests of those claiming a right to contest the accounts of the executors; and, it is much to be regretted, that a Court, possessing so extensive a jurisdiction, and of such direct and pressing importance to the community, as the Orphans’ Court of the several Counties, should be so little governed, by any settled rules of practice and proceedings.

In the present case, it should have been distinctly shewn, at whose instance this settlement was required to be made — what executors appeared before the Court — who claimed to be interested in the will, and in what shares or proportions — and which, if any, were the actors against the executors. It would be prudent and correct in all cases, where the County Court assumes jurrisdiction of any cause, of a testamentary character, to cause all its suitors to propound their allegations and interests, in writing — so that an appellate tribunal might, see, at a glance, who are the suitors, before the Court below; and in what manner the action of the Court is had on their respective claims and rights. If this was done, much litigation, expense and vexation, would be saved to ail persons concerned.

Although the conclusion to which this Court has been forced, by the state of the record in this case, is one which would relieve them from the consideration of the merits of this cause ; yet, as the case may undergo the further action of the Courts, they will proceed to express their opinion on the same.

The third, fourth and fifth assignments of error, ah though seeking; to reverse the particular judgments thereby complained of, involve the general inquiry, if the County Court, in the case presented, by the record, had jurisdiction to render any decree, distributing the estate of the testator, and to award execution, in favor of those claiming under the will.

The judge of the County Court seems to have entertained the opinion, that he had jurisdiction, as well to award- distribution to the several children, as to proceed to the settlement of the accounts of the executors. Now, many cases may, and in fact do exist, in which he would have the right to pass on the accounts, and yet not to make distribution ; and there may, no doubt, be some cases, where a distribution might be made under a will. The act of eighteen hundred and thirty, would seem to authorise such a conclusion.

A reference to the terms of the will of the testator, in this case, must satisfy every one, that it confers o,n the widow and executors, important duties and confidential trusts—that it vests with them, implicit confidence and great discretionary powers the estate is to be managed by the wife—the ne-groes divided, as she directs—lands and slaves to be given to one — slaves and money to another, when, in a certain event, others may be cut off, in the expressive language of the testator, “very short.” It can not be, that it was ever intended that such trusts as these should be overturned, and the estate distributed as if the father had made no will.

The Court are unanimously of opinion, that the County Court has no jurisdiction to proceed to a distribution, in this cau,se ; and would have affirmed the judgment of tile Circuit Court, reversing the proceedings of the County Court, if irregularities had not intervened, which would render this course improper.

The County Court rendered a judgment against the executors of the will of Ira Portis.—There were then, before that Court, Mary Gordon, executrix, G.W. Creagh and Robert Lee, executors; and the effect of the judgment there rendered, is a joint one,, against all three.—Creagh had a right to sue out as writ of error in the name of all—even without their consent; and could not take a "writ of error, in his own name, or if so done, it would give the Court no jurisdiction; and the writ of error would be dismissed. Such is the settled practice of this Court, re-cognised by numerous decisions.-- Caller vs Brittain Eastland vs Jones et al —Adams vs RobinsonSwift vs Hill.

And, the Court is bound to dismiss a cause improperly brought, on its own mere motion, as it can have jurisdiction alone by writ of error.—Jamison vs Colburn.

The Circuit Court had, therefore, no jurisdiction to proceed and render any judgment of affirmance, or reversal; but should have dismissed the writ of error.

This Court, therefore,, reverses , the judgment of the Circuit Court; and, proceeding to render such judgment as that Court should have rendered, directs that the writ of error to the County Court be quashed, for the non-joinder of the other parties to the judgment of the County Court.

In the case of Goodwin vs Creagh, depending on the same facts, -a like judgment is rendered.

      Aik. Dig. 252

      Minór’sl£ 27.

       ib. 275.

       ib. 285.

       1 Porter’s Rep. 277.

       TlStewavt and Porter' 253,andca-' ses there cited.


text:
    CALHOUN, Judge, &c. VS LUNSFORD, et al.

      As to the hand of a tax collector.
    1. No action can be maintained by the successor of a Judge of the County Court, upon the bond of an assessor and collector of taxes, made payable to the Judge — such bond, by statute, being required to be made payable to the Governor.
    In error to the Circuit Court of Dallas.
    This was an action commenced by the plaintiff' in 'error, in his capacity of Judge of the County Court of Dallas county, against Lunsford, and others, his sureties ; and was founded upon the bond of Lunsford, as an 'assessor and collector of taxes. The bond was,by its terms, made payable to one Clinton, Judge of the County Court of Dallas; and the plaintiff alledg-ed himself to be the successor in that office, of the said Clinton, and brought this action to recover, for the failure of the defendant to assess, collect and pay over, the county taxes, during the year eighteen hundred and thirty-three.
    A demurrer was filed to the declaration which was sustained, and judgment given for the defendants. This judgment was here assigned in error.
    .'Edwards, for plaintiff in error — J. B. Clark, contra.
   HOPKINS, C. J.

— In this case the action is upon a penal bond made by the defendants, and payable to Richard S. Clinton, Judge of the County Court of Dallas county, or his successors in office. The bond was subject to a condition, in which the election of Lunsford, one of the obligors, to the office of assessor and tax collector of Dallas county was recited. By the condition, the bond was to become void if Luns-ford' should faithfully discharge the duties of his office. The action was brought by the plaintiff in error, as the successor in office of Richard S. Clinton. In the declaration the condition is set out, and breaches of it are assigned. The defendants demurred to the declaration, and judgment was rendered for them upon the' demurrer. It is assigned for error in this Court, that the Circuit Court erred in sustaining the demurrer.

Our statute law requires an assessor and tax collector to make a. penal bond, with suretiesand a condition, which the law prescribes. The law requires that the bond be made payable to the Governor of the State and his successors in office, and that it be approved by the Judge of the County Court of the county in which the assessor shall be elected. A Judge of a County Court has corporate powers, so far as to enable him to discharge his official duties. The successor in office of such a Judge would be entitled to an action upon any contract that (he Judge was authorised to make, and had entered into in his official capacity, and upon which the Judge would have a right of action,' if he had continued in the office. But it was not necessary for Judge Clinton to take the bond injjthis case payable to himself, to enable him to perform any official duty, which was required of him. His duties in relation to the official bond of the assessor and tax collector, were definite. He was required to fix the penalty of the bond, to approve it, and cause it to be recorded in the office of the clerk of his Court. In taking the bond payable to himself, he acted in his natural capacity; and although the bond was made payable to him, as the Judge of the County Court of Dallas county, or his .successors in office, yet as lie had no authority to take it to himself in his official capacity, the legal effect of the bond is the same that it would be if his official character had been omitted in the bond. As the declaration showed that the plaintiff had no right to the action, the demurrer of the defendants was properly sustained.

Whether Clinton, or his representatives, if he be dead, could maintain an action upon the bond, for the use of the county or its treasurer, on the ground that the bond was voluntarily made, and by mistake substituted by the parties for the bond required by the statute, is a question, upon which, we express no opinion.

The judgment is affirmed.

       8 Johns. Rep. 330;, ] Cowén’s Rep. 670; Aik. Dig! 36.422.


author: COLLIER, J.

text:
    EVANS VS BRIDGES.

      As to the caption of a declaration.

      As to judgments too large.

      As to actions upon Bills of Exchange.

      1. It is not necessary, .that a declaration should be entitled of any particular term; or whether it have a caption, or what that caption be — so it discloses a good cause of action.
    2. That a declaration is entitled of a term, subsequent to that at which judgment is rendered, is no error — provided it appears that the declaration was in Court before judgment.
    3. A judgment, on verdict, for an amount greater than is au-thorised by the cause of action sued on, can not be reached in error.
    .4. Such matter, it seems, can only be taken advantage of, by application for a new trial.

      5. It is not essential, to fix the liability of the drawer or indorsers of a bill of exchange^ that it should be presented for accep-¡Ufanee.
    .6. But, where a bill of Exchange is presented for acceptance, which is refused, and notice given to the parties, it is not essential to present the bill for payment at maturity.
    7. The right of action of a holder of a bill of exchange, becomes complete, upon its non-acceptance, protest and notice.
    On a writ of error to the Circuit Court of Wilcox,
    The action in this case was upon a bill of exchange, by the indorsee, against the drawer. The bill was made negotiable and payable, at the Branch of the Bank of the State of Alabama at Mobile, for the sum of five hundred and ninety-five dollars, and was due at ninety days from its date, which was the (seventeenth day of December, eighteen hundred and thirty-three. The suit vías commenced on the eighth day of August, eighteen hundred and thirty-four, and the declaration averred a protest, for non-acceptance, on the twenty-sixth day of December, eighteen hundred and thirty-three.
    The defendant demurred, which being overruled, judgment upon verdict was rendered for the plaintiff, for the sum of seven hundred and thirty-three dollars and seventy-four cents.
    The decision of the Court, in overruling the demurrer, was here assigned in error.

      Porter and Stervart, for the plaintiff in error.

      J. B. Clarke, contra.
   COLLIER, J.

— Three points have been raised, by the plaintiff in this case.

1st. That the declaration, being entitled of a term subsequent to the rendition of judgment by the Circuit Court, there was no warrant for the judgment.

2d. That the verdict and judgment are for a sum, larger than the cause of action, disclosed in the record, authorised.

3d. That, though a bill of exchange be protested for non-acceptance, and notice thereof given to the drawer, yet the holder is not authorised to maintain an action, unless payment of the bill is demanded at maturity, and notice of non-payment duly given.

From the record, it appears that the plaintiff, on the seventeenth of December, eighteen hundred and thirty-three, drew on Mr. George M. Rives, at Mobile, in favor of the defendant, at ninety days’ date, fpr f/Ljc hundred and ninety dollars; which bill was protested, for non-acceptance, on. the twenty-sixth of the same month, and notice thereof duly given to the drawer.

. At the term of the Circuit Court of Wilcox County, holden in May, eighteen hundred and thirty-five, a judgment was.rendered on verdict, for seven hundred and thirty-three dollars and seventy-four cents; a demurrer to the declaration having been first overruled.

1. The first point we think untenable. — It is not essential to a declaration, that it should be entitled of any particular term ; and no matter what be its caption, or whether it have any, — if it discloses a good cause of action, it well subserves its appropriate office. It is certainly .proper, that the declaration should be in Court before judgment, to authorise its rendition ; and where the reverse appears, the judgment .should be reversed. The entry of the judgment, in this case, sufficiently advises us, that the declaration was regularly filed, in reciting, that, the parties came, by their atlornies, and the demurrer to the declaration, having been argued, &c. was overruled.

2. In respect to the second point, it has been determined by this Court, that, where a judgment following a verdict, is rendered for a sum larger than is warranted by the liability sued on, it cannot be reversed on error. The remedy of the party aggrieved, in such case, is an application for new trial.— See Moore vs Coolidge.

3, The undertaking of the parties, drawing and endorsing a bill of exchange, (such as the one before us,) when it is thrown into circulation, is, that the drawee shall both accept and pay it. This engagement of the drawer and endorsers, does not oblige the holder to present it for acceptance. If, however, he does present it, and acceptance is refused, it is considered as dishonored, and due notice must be given to all prior parties whom it is desired to charge, Bank of Washington vs. Triplett, et al. —Townsley vs. Sumrall. An acceptance being once refused, the holder need not present the bill for payment at the time appointed on its face for its maturity : (he liability of the parties is already fixed by the nonacceptance and notice.—Miller vs. Hackley. Nor need the holder wait until the time for payment expires; his right of action is complete by the non-acceptance, protest, and notice.'—Wallace vs. AgryWinthrop vs. Pepoon —Milford vs. Mayor —Balling alls vs. Gloster.

These rules, it may be remarked, do not grow out of the Common Law, strictly so called, hut result from commercial law—to -which, as securities for money, bills of exchange owe their origin ; and to the control of which, they are peculiarly subject.

By the contract arising out of the acceptance of a bill, the acceptor stipulates unconditionally to pay the hill at its maturity. By the act of drawing and endorsing, the drawer and endorsers stipulate, first, that the drawee shall accept the bill on presentment; secondly, that he shall pay it at maturity : and if he does not, and they receive due notice thereof, that they will make good his default. Such being the character of the undertaking, it follo ws, that ii the holder choose to avail himself of the first stipulation, he may have his action for a breach.

Judgment must he affirmed.

       i Porter,

       3 Kent’s Com. 54.

       1 Pet J25.

       2 ib. Í78.

       5JohnsRs 375.

       14 Mason, 338.

       1 Bay, 46S

       Done.5&

       3 Ka'st.R 48]; 3KenS Com. 64.